Monitoring implementation of the BEREC Common …berec.europa.eu/eng/document_register/subject_matter/berec/... · and WLL markets since the ... Transparency NRAs have generally required

BoR (14) 171

4 December 2014

Monitoring implementation of the BEREC Common Positions on WLA, WBA and WLL

Phase I

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Contents

I. EXECUTIVE SUMMARY .................................................................................................................... 2

II. INTRODUCTION ................................................................................................................................ 5

1. Why this work? ............................................................................................................................ 5 2. Approach to the analysis ............................................................................................................. 6 3. Structure of this report................................................................................................................. 8

III. ANALYSIS OF RESPONSES ............................................................................................................ 9

1. Introduction ................................................................................................................................. 9 2. Competition objective 1: Assurance of access ........................................................................... 9 3. Competition objective 2: Assurance of co-location at the access point (e.g. MDF, street

cabinet, concentration point) and other associated facilities .................................................... 16 4. Competition objective 3: Level playing field .............................................................................. 17 5. Competition objective 4: Avoidance of unjustified first mover advantage................................. 20 6. Competition objective 5: Transparency..................................................................................... 24 7. Competition objective 6: Reasonable quality of access products - technical issues ................ 28 8. Competition objective 7: Reasonable quality of access products - operational aspects .......... 31 9. Competition objective 8: Assurance of efficient and convenient wholesale switching ............. 36 10. Competition objective 9: Assurance of efficient migration process from legacy to NGN/NGA

network ...................................................................................................................................... 39 11. Competition objective 10: Fair and coherent access pricing .................................................... 43

Annex 1 – List of respondents ........................................................................................................... 50

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I. EXECUTIVE SUMMARY

Over the last three years BEREC has undertaken a programme of work which involved

revising its broadband common positions (relating to the relevant markets 4, 5 and 6 as

outlined by the Commission Recommendation of 2007)1 and developing a methodology to

monitor how NRAs are implementing these. The third (and final) stage of the work involved

undertaking the actual monitoring exercise of whether and how NRAs are following the best

practices set in the revised common positions.

The monitoring exercise is being carried out over three years to allow for the full cycle of

market reviews to be carried out by all NRAs. This report sets out the results of Phase 1 of

the monitoring exercise which was carried out in the first half of 2014. We intend to repeat

this exercise in 2015 and 2016 (as Phase 2 and Phase 3 respectively).

Our analysis in this report focuses on NRAs that have notified decisions relating to market

reviews in the relevant WLA, WBA and WLL market since the revised common positions

were adopted on 7 December 2012 and up to the deadline for providing responses to Phase

1 of the monitoring exercise (around the end of March 2014). We refer to these NRAs as the

‘participants’ in each of the relevant markets.2

We have broken our analysis down into ten sections, each pertaining to one of the

competition objectives identified in the revised common positions and the best practices

relevant to these in each of the relevant markets.

There are relatively few NRAs that are included as participants in our analysis at this stage.

Therefore, it is probably too early to draw firm conclusions about how participating NRAs are

following the best practices set out in the revised common positions. Furthermore, we

recognise that NRAs that have not notified decisions in relation to the relevant WLA, WBA

and WLL markets since the common positions were adopted on 7 December 2012 will have

implemented many of the best practices. However, these NRAs are not included as

participants and are not captured in this report. We would expect that as more NRAs

complete their cycle of market reviews during the course of 2015 and 2016 the set of

participants will increase and a clearer picture of whether, how and why NRAs are adopting

best practices (or not) will emerge.

Notwithstanding the above, we consider that some early findings (albeit tentative) are

emerging from Phase 1 of our monitoring exercise. Generally participants are following the

most broad or high level best practices relating to each of the competition objectives. Where

they are not, this appears to be because of reasons relating to specific circumstances (e.g.

they were not considered necessary due to the network technology deployed or the

competitive problem identified in the country in question). However, there does appear to be

more variation relating to whether the participants have adopted the more detailed, specific

1 COMMISSION RECOMMENDATION of 17 December 2007 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:344:0065:0069:en:PDF 2 The participants are as follows: WLA and WBA markets – Austria, Croatia, Cyprus, Estonia, Ireland, Latvia, Malta, Netherlands, Norway and UK; WLL market – Belgium, Greece, Ireland, Spain, Sweden and UK.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:344:0065:0069:en:PDF

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and prescriptive best practices. This is probably unsurprising since these are often

technology specific (and therefore may not be relevant to a particular NRA) or considered

unnecessary if other obligations have been imposed.

It is worth noting that certain best practices may only be applicable to certain circumstances

(e.g. the deployment of a particular type of network infrastructure) and therefore the fact that

an NRA has not implemented a particular best practice does not suggest there may be a

concern.

Further, whilst the report discusses whether NRAs have imposed particular best practices

under relevant market review procedures, it is not intended to assess whether the reasons

for not imposing a particular best practice are justified or not, or what the effect of the

imposition or otherwise of a specific best practice by a given NRA might be. The following

table gives a high-level (only) overview of our analysis. Section III of this report provides

further detail.

Table 1: Broad overview of our analysis

Competition objective Overview

Assurance of access All NRAs have imposed obligations requiring SMP operators to provide proportionate access products. These follow the ladder of investment principle and encourage infrastructure competition at the deepest level of the network.

There is more variation in remedies relating to specific access products reflecting differences in the detail of the network architecture of the incumbent operator (e.g. some countries have a network that is based on FTTP whereas some do not).

Assurance of colocation at access points

NRAs have generally imposed obligations in line with best practices. Where NRAs have not followed best practices this reflects the differences in the technology used by that country. For example, in the UK and Austria WBA markets colocation is unnecessary given the specifics of the interconnect products offered (bitstream) does not require colocation.

Level playing field All NRAs have imposed general non-discrimination obligations and provided clarifications on how these should be interpreted.

Where NRAs have defined a form of equivalence that should be adopted, most have opted for EOO. However, the UK (WLA, WBA and WLL) and Ireland (WBA only) are exceptions and have imposed EOI obligations to varying degrees.

Avoidance of unjustified first-mover advantage

NRAs have generally imposed requirements that ensure the replicability of new downstream service introduced by SMP operators. It is common practice for notice periods to have been set relating to the removal of products and/or the requirement for the NRA to approve the removal of products.

There is variation between NRAs on the details of how this is implemented.

Transparency NRAs have generally required SMP operators to provide clarity around the terms of access through the publication of a Reference Offer (or where NRAs have not required the publication of a Reference Offer it is common practice for the SMP operator to publish information regarding the terms of access e.g. in Sweden the SMP operator publishes such

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Competition objective Overview

information for products in the WLL market).

The best practices regarding the information that is included in the Reference Offer and how this is updated are also generally well observed although there is variation between NRAs.

Reasonable quality of access products – technical

Where required, NRAs have typically imposed requirements to ensure a reasonable quality of access, through requiring reasonable requests to be met and through the publication of a Reference Offer. However, there are exceptions. For example, the Sweden NRA does not impose any requirements in the WLL market (since it is common practice for the SMP operator to publish this information).

Reasonable quality of access products – operational

NRAs have typically imposed requirements relating to service levels (though the use of SLAs, SLGs and KPIs). However, there are exceptions. For example, the Sweden NRA does not impose any requirements in the WLL market since it considers a non-discrimination obligation to be a sufficient remedy.

Assurance of efficient and convenient wholesale switching

NRAs have generally imposed requirements to ensure that the wholesale switching process is efficient and speedy and that the price of switching does not act as a barrier to competition in the WLA and WBA market (but less so in the WLL market where NRAs have not identified a market failure that needs addressing). However, NRAs have taken different approaches on how prescriptive they are in implementing this requirement. Whilst some NRAs have imposed requirements relating to SLAs and SLGs regarding the switching process other NRAs consider this unnecessary. For example, in the UK WLL market, the SMP operator is subject to an obligation to provide network access on reasonable request and alternative operators can request migration products without further intervention from the NRA.

Assurance of efficient migration processes from legacy to NGN/NGA networks

Evidence is mixed. Approaches by NRAs typically reflect whether or not the incumbent operator is planning to switch-off the legacy network (e.g. in the UK there are no plans to switch-off the legacy network); whether the deployment of NGA is in its early stages; or whether there is no NGA (e.g. in Cyprus).

A number of NRAs have not imposed requirements for a migration process between legacy and NGN/NGA networks (or those that have are not prescriptive in their requirements). This appears to be because legacy networks are continuing to be deployed and competition issues around migrating to NGN/NGA networks have not (as yet) been significant.

Fair and coherent access pricing

All NRAs have imposed some form of price regulation (even if only through imposing a non-discrimination obligation e.g. Sweden). NRAs have generally imposed requirements that ensure (with reasonable certainty) that the price of access will permit an efficient entrant to compete with the SMP operator; and that this incentivises efficient investment and sustainable competition. However, NRAs have also taken account of the nature of competition when imposing obligations. For example, the Austria, Netherlands, Norway and UK NRAs have not imposed price regulation relating to access where there is infrastructure based competition that removes the requirement of such remedies.

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II. INTRODUCTION

1. Why this work?

Over the last three years BEREC has undertaken a programme of work which involved

revising its broadband common positions and developing a methodology to monitor how

NRAs are implementing it. The third (and final) stage of the work involved undertaking the

actual monitoring exercise.

The monitoring exercise relates to the relevant markets 4, 5 and 6 as outlined by the

Commission Recommendation of 2007. However, we recognise that the Commission has

published a new Recommendation on relevant markets in October 2014.3

The monitoring exercise is being carried out over three years to allow for the full cycle of

market reviews to be carried out by all NRAs. This report sets out the results of Phase 1 of

the monitoring exercise which was carried out in the first half of 2014. The results presented

here therefore include notifications made by NRAs (since BEREC’s Revised Common

Positions were adopted on 7 December 2012) up to and including circa 31 March 2014. In

some cases, particularly where NRAs had consulted but not completed their market reviews

by March 31 2014 (e.g. UK Markets 4 & 5), the results include notifications made as late as

June 2014. Further monitoring exercises are being planned for 2015 and 2016 respectively.

1.1. A reminder of the process so far

In 2012, following a public consultation, BEREC adopted its revised Common Positions

(CPs) listing the best practice remedies to be used in the following three wholesale markets:

Revised BEREC Common Position on best practice in remedies on the market for

wholesale (physical) network infrastructure access (including shared or fully

unbundled access) at a fixed location imposed as a consequence of a position of

significant market power (SMP) in the relevant market (the WLA CP).

Revised BEREC Common Position on best practice in remedies on the market for

wholesale broadband access (including bitstream access) imposed as a

consequence of a position of significant market power (SMP) in the relevant market

(the WBA CP).

Revised BEREC Common Position on best practices in remedies as a consequence

of a SMP position in the relevant markets for wholesale leased lines (the WLL CP).

Application of the best practices contained in the CPs will assist NRAs in designing effective

remedies in line with the objectives of the Framework. At the same time, the CPs are not a

substitute for any of the legal tests which NRAs must carry out before imposing SMP

remedies, in particular the requirement for NRAs to show (among other things) that SMP

remedies are based on the nature of the problem identified, proportionate and justified in light

of the policy objectives laid down in Article 8 of the Framework Directive. However, the CPs

3 COMMISSION RECOMMENDATION of 9 October 2014 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC https://ec.europa.eu/digital-agenda/en/news/commission-recommendation-relevant-product-and-service-markets-within-electronic-communications

https://ec.europa.eu/digital-agenda/en/news/commission-recommendation-relevant-product-and-service-markets-within-electronic-communications

https://ec.europa.eu/digital-agenda/en/news/commission-recommendation-relevant-product-and-service-markets-within-electronic-communications

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are an important instrument that NRAs and the Commission must take utmost account of, in

the same manner as for Commission Recommendations (such as the NGA

Recommendation). Therefore, and as discussed in its consultation on the revised CPs,

BEREC expects NRAs to explain in their notified draft measures the steps they have taken

to:

analyse the objectives identified in the CPs and the related competition issues with

reference to the market analysis they have performed;

to the extent consistent with applicable national law, provide an effective and

proportionate regulatory solution to those issues; and

explain transparently how those competition issues have been addressed and give

reasons when their regulatory solutions depart from the best practice remedies (BPs)

identified in the CPs.

Consistent with its work programme for 2013, BEREC then developed a methodology to

monitor how NRAs have implemented the BPs recommended in the revised CPs. The

revised CPs focus on the consistent application of the Directives across Member States

(MSs), rather than solely on the uniformity of the remedies imposed, striking a delicate

balance between the need to ensure consistency and the need to take into account national

market circumstances and differences in national legislations. On this basis, the main

objectives of the monitoring exercise are (amongst other things) to better understand how

and to what degree NRAs have implemented the revised CPs and what new best practices

may be emerging.

1.2. The focus of the current exercise

Below and in the subsequent sections we briefly summarise the results and key messages

emerging from this exercise. As explained above, the results presented in this document

include notifications made by NRAs (subsequent to the revised CPs being adopted on 7

December 2012) up to and including circa 31 March 2014. These NRAs are referred to as

‘participants’ in each of the relevant markets. In some cases, particularly where NRAs had

consulted but not completed their market reviews by March 31 2014 (e.g. UK Markets 4 & 5),

the results include notifications made as late as June 2014.

We recognise that NRAs that have not notified decisions in relation to the relevant WLA,

WBA and WLL markets since the common positions were adopted on 7 December 2012 will

have implemented many of the best practices. However, these NRAs are not included as

participants and are not captured in this report. We would expect that as these NRAs

complete their cycle of market reviews during the course of 2015 and 2016 their information

will be captured in Phase 2 or Phase 3 of this exercise.

2. Approach to the analysis

As discussed in the Monitoring methodology which BEREC published in 2013,4 to assist in

this task, BEREC developed a detailed Excel based questionnaire to be completed by

4 BoR (13) 108 Methodology for monitoring the application of the BEREC common positions on WLA, WBA and WLL, 16 September 2013.

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individual NRAs. Questionnaires were sent to 33 NRAs and responses were received from

31 NRAs (Bulgaria and Luxembourg NRAs did not respond).

The questionnaires were structured along the competition objectives listed in each CP. In

addition, and in order to avoid introducing any unintended bias, at least one question is

associated with each BP (in cases where a BP is too long or made up of several elements,

further questions were included). Moreover, several questions were added which were more

general in nature and which aimed to capture the high level policy considerations

underpinning the overall regulatory approach implemented by each NRA.

The information gathered has been provided through a self-certification process. Therefore,

although BEREC has considered the accuracy of the information in the round (and sought

clarifications where necessary) it has not cross-checked each response against each NRA’s

published decision.

2.1. Types of questions

The questionnaire included a mixture of closed YES/NO or where the answer can be chosen

using a drop down menu) and open ended questions WHY/HOW.

The questionnaire was structured in a manner which also captured the following additional

considerations:

A generic question, at the start of each section of the questionnaire dealing with a

relevant competition objective, aimed at capturing the main documents and (briefly)

any general information NRAs thought would be useful for BEREC to collate.

In some instances, when the answer to a question was YES - we requested NRAs to

provide (briefly) additional information regarding the implementation of the relevant

BP (for example, commenting on the length of notice periods imposed on a case-by-

case basis).

When the answer to a question was NO – we requested NRAs to provide a brief

summary of the justification for such a departure (for example, the competition

problem identified is being addressed through alternative remedies).

In a limited set of cases the NRA could choose to respond ‘No, but conforming to the

Best Practice’. This response was allowed where the best practice is less definitive

and indicates that the NRA ‘may consider’ imposing a particular obligation (rather

than ‘should’ impose an obligation).

We also included a number of questions which aim to explore HOW NRAs have

implemented certain BPs. For example, one of the BPs require “NRAs’ imposition of

remedies should be based on the ladder of investment principle”. In such cases it is

more informative to find out how NRAs ensured the practical implementation of a BP,

rather than only whether they have implemented it.

http://berec.europa.eu/eng/document_register/subject_matter/berec/regulatory_best_practices/methodologies/1478-methodology-for-monitoring-the-application-of-the-berec-common-positions-on-wla-wba-and-wll




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3. Structure of this report

Section III provides our analysis of responses. The section has been split into sub-sections

each pertaining to one of the ten Competition Objectives outlined in BERECs Revised CP, as

follows:

Assurance of access

Assurance of co-location at the access point (e.g. MDF, street cabinet, concentration

point) and other associated facilities

Level playing field

Avoidance of unjustified first mover advantage

Transparency

Reasonable quality of access products – technical issues

Reasonable quality of access products – operational aspects

Assurance of efficient and convenient wholesale switching

Assurance of efficient migration processes from legacy to NGN/NGA network

Fair and coherent access pricing

Each sub-section is then structured as follows:

First, we provide a description of the competition issues identified by BEREC.

Second, we summarise the Best Practice remedies relevant to addressing those

competition issues.

Third, we analyse the evidence pertaining to whether NRAs have imposed the Best

Practice in each of the relevant markets. We summarise the responses to the

questionnaire (according to each BP) in tables. Where NRAs have not imposed

obligations relating to each BP an overview of the reasons for this is provided. In the

tables that summarise the responses the following notation is used:

Table 2: Notation used in summary tables

Impose obligations pertaining to BP

Do not impose obligations pertaining to BP

[] No, do not impose obligations, but conform to BP

n/a Best practice is not applicable. For example, in cases where specific

technology relevant to BP is not deployed and therefore BP is not required;

or where market is deregulated.

/ In a limited set of cases a / is given. Where this is the case an explanation

is provided in the text.

Annex 1 provides a list of respondents to the questionnaire.

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III. ANALYSIS OF RESPONSES

1. Introduction

This section provides our analysis relating to whether NRAs are implementing the Best

Practice remedies outlined in BEREC’s Revised CP.

We have received 31 responses to the questionnaire issued to NRAs in 2014 (see Annex 1

for a list of respondents). However, our analysis has focused on those NRAs that have

notified the Commission of their decisions relating to reviews of the relevant markets since

BEREC’s Revised CPs were adopted on 7 December 2012. These NRAs are referred to as

the ‘participants’.

2. Competition objective 1: Assurance of access

2.1. Background

The BEREC Common Positions state three competition problems that may arise across all

three markets. First, operators with significant market power (SMP) may deny access to their

networks. Second, SMP operators may restrict the use of services. Third, SMP operators

may refuse to develop new access products on request from alternative operators.

The competition issues identified by BEREC are addressed by the Best Practices 1-15 in the

WLA Common Position; Best Practices 1-9 in the WBA Common Position; and Best Practice

1-6 in the WLL Common Position. These can be summarised as follows:

Table 3: Best practice remedies

Description of best practice remedy WLA WBA WLL

NRAs should impose the appropriate and proportionate access

products to reflect national circumstances

BP1 BP1 BP1

NRAs’ remedies should be based on the ladder of investment principle BP2 BP2 BP2

NRAs should encourage infrastructure competition at the deepest level

where it is reasonable

BP3 BP3 BP3

To avoid competitive distortions, access should be mandated

regardless of technical solution (insofar as it is proportionate)

BP4 BP4 BP4

When imposing remedies, implementation should take account of the

viability of the remedy

BP5 n/a n/a

NRAs should impose bitstream access products including the

appropriate level of handover

n/a BP5 n/a

Access products at specific access points: Unbundled access to

the fibre loop in the case of FTTH. For P2P the ODF is the appropriate

access point

BP6a n/a n/a

Access products at specific access points: Unbundled access to

the fibre loop in the case of FTTH

For P2MP, the access point is typically an access point downstream

BP6b n/a n/a

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from the MPoP

The last splitter is the unique access point for physical unbundled

access (as long as no alternative for unbundling at the MPoP is

available). The design of P2MP needs to take account of the location

of the splitter

BP6b (i) n/a n/a

Whenever the access point is downstream of the MPoP the remedies

imposed need to encompass the access point in combination with an

appropriate product between the access point and the MPoP

BP6b (ii) n/a n/a

Until any feasible technologies allowing physical unbundling at the

MPoP become available, the NRA should consider imposing an active

remedy replicating as much as possible physical unbundling

BP6b

(iii) n/a n/a

Access products at specific access points: NRAs should impose

unbundled access to the copper loop at the MDF BP7a n/a n/a

Access products at specific access points: In the case of FTTN,

the copper loop is properly accessed at a concentration point

downstream of MPoP

BP7b n/a n/a

Access products at specific access points: NRAs may consider

imposing an active remedy providing access at the MPoP replicating

as much as possible physical unbundling

BP7c n/a n/a

Access products at specific access points: In case access to in-

house cabling is not included in the (copper) loop it should be granted

if applicable under private law

BP8 n/a n/a

Access products to reach access point: NRAs should impose an

obligation for an access product to reach the access point from the

MPoP

Access product to reach the bitstream access point: NRAs should

impose an obligation ensuring that the bitstream access point can be

reached with an appropriate remedy

BP9 BP6 n/a

Access products to reach access point: NRAs should impose an

obligation to ensure that the MPoP can be connected to the operators

infrastructure with an appropriate remedy

BP10 n/a n/a

Access products to reach access point or Access product to

reach the bitstream access point: Obligations to reach the access

point should be designed to prevent strategic withholding of capacity

BP11 BP7 n/a

Access products to reach access point: Access to civil engineering

infrastructure between the MPoP and the customer premises should

be ensured by the NRA

BP12 n/a n/a

This should take into account access to manholes and derivation

points

BP12a n/a n/a

The NRA should define rules for optimising space BP12b n/a n/a

Prices should be cost oriented BP12c n/a n/a

Access products to reach access point: Where necessary NRAs

should impose dark fibre/leased lines as an independent measure or

BP13 n/a n/a

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subsidiary measure to duct access

NRAs should require SMP operators to provide network access where

an alternative operator reasonably requests it

BP14 BP8 BP5

If access to new products and services is not included through the

review of the Reference Offer (RO), NRAs should impose an obligation

on SMP operators requiring them to publish the process specifying

how they will deal with requests

BP15 BP9 BP6

The process should detail how to make the request, the information

required and timescales

BP15a BP9a BP6a

NRAs should impose timescales for dealing with requests BP15b BP9b BP6b

If considered feasible, access should be given to new products

promptly

BP15c BP9c BP6c

When new services and products are made available, NRAs should

ensure that they are captured by the relevant SMP obligations already

imposed on the SMP operator

BP15d BP9d BP6d

2.2. Analysis by best practice

2.2.1. WLA market

Since the revised CP has been in place, the WLA market has been reviewed by 10 NRAs

(’the WLA participants’). Table 4 summarises the best practice remedies that have been

imposed for each of the WLA participants.

Table 4: Best practice remedies imposed by WLA participants

Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

General remedy

BP1

BP2

BP3

BP4

BP5

Access product at specific access point remedy

BP6a n/a n/a n/a n/a n/a

BP6b(i) n/a n/a

BP6b(ii) n/a

BP6b(iii) n/a

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Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP7a

BP7b n/a

BP7c [] n/a [] [] []

BP8 [] n/a n/a []

Access products to reach access point remedy

BP9

BP10

BP11

BP12a

BP12b

BP12c n/a

BP13

General remedy

BP14

BP15 n/a n/a n/a n/a n/a n/a

BP15a n/a n/a n/a n/a n/a n/a

BP15b n/a n/a n/a

BP15c n/a n/a n/a

BP15d

In relation to BP5, all WLA participants assessed the viability of an access product. When

imposing remedies, population density was taken into account by 5 NRAs (Cyprus, Estonia,

Ireland, Latvia, the Netherlands), economic factors by 8 NRAs (Austria, Cyprus, Estonia,

Latvia, Malta, the Netherlands, Norway, UK), the architecture chosen by the SMP operator

including the location of the concentration points by 9 NRAs (Austria, Croatia, Cyprus,

Estonia, Latvia, Malta, the Netherlands, Norway, UK) and other factors by 2 NRAs (Austria,

Malta).

BP6a is not applicable to Austria, Croatia, Malta and the UK since the SMP operators FTTH

network is not P2P.

BP6a is not applicable to Cyprus since the SMP operator has not deployed a fibre network.

The Ireland NRA explained that the SMP operator has not deployed a commercial fibre

product and therefore it has mandated access at the exchange (MPOP) and cabinet co-

location to facilitate either a P2P or a GPON solution.

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In relation to BP6b(i), the UK NRA does not take account of the location of the splitter as

unbundling at the splitter was not considered to be viable. The Ireland NRA does not impose

a P2MP obligation.

Seven NRAs did not mandate (BP6(ii)) since this is obligation is dependent on the location of

the splitter (and in some cases the access point has to be combined with the fibre sub-loop).

The Austria NRA explained that using the SMP operator’s GPON the last splitter would not

connect a sufficient proportion of customers to support a viable business case for unbundling

at the last splitter. Instead the Austria NRA imposed a requirement for the SMP operator to

provide a VULA product covering FTTH. The Ireland NRA imposed an obligation to provide

access to the fibre loop (but explained that access to the terminating segment was not

mandated).

In relation to BP6(iii) the Netherlands NRA explained that there appeared to be a viable

business case for physical unbundling and therefore it was unnecessary to impose an

obligation requiring an active remedy. The Malta NRA explained that a VULA remedy was

currently being developed with the SMP operator.

In relation to BP7b, the Ireland NRA withdrew access to SLU in certain geographic areas to

facilitate the deployment of vectoring technology.

In relation to BP12a, the Austria NRA explained that ducts and dark fibre are only available

between the street cabinet and the MDF. With regard to optimising space available in ducts

(BP12b), the Austria NRA explained that the demand for access to ducts has been very low

and therefore this was not considered an issue. The Ireland NRA imposes an obligation

requiring access to civil engineering (BP12a) and stated that access to ducts is currently

under discussion by industry. In relation to BP12b, the Ireland NRA stated that this

requirement is currently under discussion with industry and the Norway NRA explained that

the need for regulatory intervention had not been identified.

In relation to BP14, although the Ireland NRA does not impose a requirement for SMP

operators to provide network access where an alternative operator reasonably requests, an

industry process is established for assessing and responding to SoRs with an indicative

timeline.

In relation to BP15, the Croatia, Estonia, Ireland, Latvia, Malta and Netherlands NRAs

explained that this was not applicable since access to new products and services is generally

included through the review of the Reference Offer.

In relation to BP15, the Austria NRA explained that if the SMP operator is offering a new

retail product which requires a new wholesale access product, it has to offer such a product

due to a non-discrimination obligation. In the event that an alternative operator demands a

new product which is not used internally by the SMP operator, the SMP operator has an

obligation to negotiate in good faith. If there is no agreement, the alternative operator can

make an interconnection proceeding to the NRA.

In relation to BP15c, the UK NRA does not impose a requirement to give access to new

products where it is feasible but instead imposes a requirement to give access to new

products where it is reasonable.

BoR (14) 171

14

2.2.2. WBA market

Since the revised CP has been in place the WBA market has been reviewed by 10 NRAs

(’the WBA participants’). Table 5 summarises the best practice remedies that have been

imposed for each of the WBA participants.

In Malta the WBA market was deregulated in 2008 and therefore no regulatory remedies are

imposed.

In the Netherlands and Austria, the WBA market is deregulated for residential users but not

for the business segment (and therefore the information below relates to the best practice

obligations imposed in the business segment only).

Table 5: Best practice remedies imposed by WBA participants

Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP1 n/a

BP2 n/a

BP3 n/a

BP4 n/a

BP5 n/a

BP6 n/a []

BP7 n/a []

BP8 n/a


BP9a n/a n/a n/a n/a

BP9b n/a n/a n/a n/a

BP9c n/a n/a n/a n/a

BP9d n/a

In relation to BP7, the Austria NRA did not set obligations designed to prevent the strategic

withholding of capacity since access points are central and capacity issues are not

considered relevant.

In relation to BP9, the Croatia, Cyprus, Estonia, Latvia and the Netherlands NRAs address

the issue of obtaining access to new access products through reviewing the Reference Offer

(as opposed to imposing a specific condition). The UK NRA requires access to new products

as part of an EOI obligation. The Austria NRA requires the SMP operator to provide access

through imposing a non-discrimination obligation.

In relation to BP9a, the Ireland NRA does not impose a specific requirement since timescales

for dealing with requests for access are included in the Reference Offer.

BoR (14) 171

15




2.2.3. WLL market

Since the revised CP has been in place the WLL market has been reviewed by 6 NRAs (‘the

WLL participants’). Table 6 summarises the best practice remedies that have been imposed

for each of the WBA participants.

Table 6: Best practice remedies imposed by WLL participants

Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP1

BP2

BP3

BP4

BP5

BP6 n/a n/a n/a

BP6a n/a n/a n/a

BP6b n/a

BP6c n/a n/a

BP6d

In relation to BP2, the Sweden NRA explained that the remedies imposed are not based on

the ladder of investment principle since there was no point in a leased lines buyer building its

own network. This argument justified its position in relation to BP3 i.e. it has not sought to

encourage competition at the deepest level in the network.

In relation to BP6, the Belgium, Greece and Sweden NRAs do not impose a specific

requirement since timescales for dealing with requests for access are included in the

Reference Offer.




BoR (14) 171

16

3. Competition objective 2: Assurance of co-location at the access

point (e.g. MDF, street cabinet, concentration point) and other

associated facilities

3.1. Background

The BEREC Common Position refers to the competition issues relating to SMP operators

denying access to associated facilities which are key to the provision of services in in the

relevant market and artificially restricting the usage of co-location and other associated

facilities.

The competition issues identified by BEREC are addressed by the Best Practice 16 in the

WLA Common Position; Best Practice 10 in the WBA Common Position; and Best Practice 7

in the WLL Common Position. The best practice can be summarised as follows:



NRAs should impose obligations with regard to the provision of co-

location and other associated facilities on a cost-oriented basis under

clear rules and terms approved by the regulator

BP16 BP10 BP7


3.2.1. WLA market

Since the revised CP has been in place, the WLA market has been reviewed by 10 NRAs

(’the WLA participants’). Table 8 summarises whether the best practice remedy in relation to

the assurance of co-location at delivery points and other facilities has been imposed for each

of the WLA participants.


Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP16

3.2.2. WBA market

Since the revised CPs has been in place the WBA market has been reviewed by 10 NRAs

(’the WBA participants’). Table 9 summarises whether the best practice remedy in relation to

the assurance of co-location at delivery points and other facilities has been imposed for each

of the WBA participants.


imposed.

BoR (14) 171

17





Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP10 n/a

The Austria, Croatia and the UK NRAs do not impose obligations regarding the provision of

co-location in the WBA market since it is not necessary as the interconnect products

currently in place do not require co-location.

3.2.3. WLL market


WLL participants’). Table 10 summarises whether the best practice remedy in relation to the

assurance of co-location at delivery points and other facilities has been imposed for each of

the WLL participants.


Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP7

Although the Sweden NRA has imposed obligations with regard to the provision of co-

location and other associated facilities these have been imposed on a non-discriminatory

pricing basis instead of a cost-oriented basis.

4. Competition objective 3: Level playing field

4.1. Background

The BEREC Common Position refers to the competition issue of alternative operators being

unable to compete on a level playing field which may result in SMP players having an unfair

advantage; having an unmatchable advantage; discriminating in favour of their own group

business (or between its own wholesale customers); and exhibiting obstructive and foot-

dragging behaviour.

The competition issue identified by BEREC is addressed by the Best Practices 17-20 in the

WLA Common Position; Best Practices 11-14 in the WBA Common Position; and Best

Practices 8-11 in the WLL Common Position. These can be summarised as follows:

BoR (14) 171

18



NRAs should impose a general obligation of non-discrimination BP17 BP11 BP8

NRAs should further clarify how the non-discrimination obligation is

interpreted on a case-by-case basis

BP18 BP12 BP9

NRAs should impose an obligation on SMP operators requiring

equivalence and justify the form of equivalence imposed

BP19 BP13 BP10

NRAs should consider imposing functional separation as remedy of

last resort

BP20 BP14 BP11


4.2.1. WLA market

Since the revised CP has been in placed the WLA market has been reviewed by 10 NRAs


imposed for each of the WLA participants.5


Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP17

BP18 n/a n/a n/a

BP19

EOI,

EOO,

or both

EOO EOO Both EOO EOO EOO EOO Both EOO Both

BP20 n/a n/a n/a n/a n/a n/a n/a n/a n/a []

In relation to BP18 the Cyprus, Estonia and Malta NRAs do not provide further clarification

regarding the interpretation of the non-discrimination requirement since no relevant cases

have emerged. The Latvia NRA does not provide clarification of the interpretation of the non-

discrimination requirement on a case-by-case basis but provides clarification under its

relevant rules. In particular, it has set rules on technical terms and conditions and on the

information that must be included in the Reference Offer, which provide greater detail about

the non-discrimination obligation.

5 Although not included in the WLA participants, the Italy NRA imposes EOO requirements in relation to the WLA market and has accepted a voluntary undertaking of functional separation by the SMP operator. The Slovenia NRA is also not included in the WLA participants, however, in 2011 it imposed EOI requirements on the SMP operator in relation to access to copper-based LLU (full and shared) and sub-loop unbundling (including access to duct and dark fibre).

BoR (14) 171

19

In relation to BP20, none of the WLA participants have imposed functional separation.

However, BP20 is considered a remedy of last resort. The UK NRA accepted a voluntary

undertaking of functional separation by the SMP operator.

4.2.2. WBA market



imposed for each of the WBA participants.6


imposed.





Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP11 n/a

BP12 n/a n/a n/a n/a

BP13 n/a

EOI,

EOO,

or both

EOO EOO EOO Both n/a EOO EOO EOI

BP14 n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a

In relation to BP12, the Latvia NRA does not provide clarification on the interpretation

obligation a case-by-case basis but does so under its relevant rules, as explained above in

relation to the WLA market. At this stage it has not implemented either EOO or EOI since the

costs are considered too high.

In relation to BP13, the Ireland NRA requires the SMP operator to provide the ordering,

provisioning and repair of NGA bitstream services on an EOI basis. All other services in the

WBA market must be provided, at a minimum, on an EOO basis.


However, BP14 is considered a remedy of last resort.

6 Although not included in the WBA participants, the Italy NRA imposes EOO requirements in relation to the WBA market and has accepted a voluntary undertaking of functional separation by the SMP operator. The Slovenia NRA is also not included in the WBA participants, however, in 2011 it imposed EOI requirements on the SMP operator in relation to copper-based and NGA-based bitstream access.

BoR (14) 171

20

4.2.3. WLL market



for each of the WLL participants.


Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP8

BP9 n/a n/a n/a

BP10

EOI, EOO,

or both

EOO EOO EOO EOO Both

BP11 n/a n/a n/a n/a n/a []

In relation to BP9, the Sweden NRA has not provided further clarification regarding the

interpretation of the non-discrimination since no relevant cases have emerged.


However, BP11 is considered a remedy of last resort. The UK NRA accepted a voluntary

undertaking of functional separation by the incumbent operator.7

5. Competition objective 4: Avoidance of unjustified first mover

advantage

5.1. Background

The BEREC Common Position refers to the competition issues of SMP operators having an

incentive to discriminate in favour of their own downstream arms (and thereby having an

unjustified first mover advantage in downstream markets); the risk of SMP operators

commissioning new infrastructure that alternative operators are not able to use (and thereby

not allowing all market players the same opportunity to compete for new business in

downstream markets); and SMP operators denying access to information relevant for other

operators roll-out of NGA.

7 Although not a WLL participant, the Italy NRA imposes EOO requirements on the SMP operator in the WLL market and has accepted a voluntary undertaking of functional separation by the SMP operator.

BoR (14) 171

21

The competition issues identified by BEREC are addressed by the Best Practices 21-25 in

the WLA Common Position; Best Practices 15-20 in the WBA Common Position; and Best




NRAs should put in place a regime that ensures the technical and

economic replicability of the new downstream services introduced by

SMP players

BP21 BP15 BP12

Where SMP operators need to supply a new wholesale product, NRAs

should impose an obligation on SMP operators regarding the timely

availability of information according to lead times

BP22 BP16 BP13

In relation to NGA 6 months might be reasonable n/a BP17 n/a

NRAs should ensure that alternative operators have the ability to

influence the decisions regarding the characteristics of the new

wholesale product

BP23 BP18 BP14

Where relevant, NRAs should impose a requirement in relation to lead

times regarding the removal of existing wholesale inputs

BP24 BP19 BP15

Information on an SMPs newly rolled out NGA network should be

available (a) well in advance and on a non-discriminatory basis; and

(b) periodically updated if necessary

BP25 BP20 n/a


5.2.1. WLA market

Since the revised CP has been in place the WLA market has been reviewed by 10 NRAs




Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP21

BP22

BP23

BP24 n/a

BP25

(a)

BP25

(b)

[] []

BoR (14) 171

22

In relation to BP21, the Latvia NRA stated that it did not impose a requirement on the SMP

operator to ensure the technical and economic replicability of new downstream services

since it considered there was the presence of infrastructure competition with both the SMP

operator and alternative operators investing in NGA networks.

In Malta VULA obligations are currently being developed with the SMP operator and their

details are not yet available.

In relation to BP23, the Norway NRA indicated that the SMP operator has to negotiate with

alternative operators regarding the technical characteristics and terms and conditions of new

wholesale services and interfaces. The Austria NRA explained that the introduction of new or

adapted wholesale products mainly results from the non-discrimination obligation.

In relation to BP24, the Austria NRA explained that it had not imposed lead times for

removing wholesale products since the SMP operator was not allowed to remove products it

was obliged to provide.

In relation to BP25(a), the Malta NRA and the Estonia NRA did not require the information on

the SMP operator(s)’ ‘newly’ rolled-out NGA network to be made available on a non-

discriminatory basis. In Malta the information is only available to the NRA. The Estonia NRA

considered the obligation unnecessary. In relation to BP25(b), the UK NRA explained that

although it did not specifically require the information to be periodically updated, where this

information is updated it must be provided to other operators at the same time it is provided

to it’s the SMP operators own downstream divisions. Where it relates to technical information

it must be provided 90 days in advance and for the reference offer the notification periods is

28 days.

5.2.2. WBA market





imposed.




BoR (14) 171

23


Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP15 n/a

BP16 n/a

BP17 [] n/a

BP18 n/a

BP19 n/a n/a

BP20(a) n/a

BP20(b) [] n/a

The Estonia NRA responded that it had not imposed any of BP15 – BP20 in the WBA

market, explaining that these are considered unnecessary to implement individually because

of other remedies that have been imposed, namely cost oriented prices and a non-

discrimination obligation. These remedies have provided sufficient protection against

potential distortions to competition and no complaints have been received regarding these

issues.

In relation to BP15, the Latvia NRA stated that it did not impose a requirement on the SMP

operator to ensure the technical and economic replicability of new downstream services

since it considered there was the presence of infrastructure competition with both the SMP

operator and alternative operators investing in NGA networks.

In relation to BP17, the Austria, Ireland, Netherlands and Norway NRAs set lead times

around the availability of information in relation to new NGA products. Ireland NRA requires a

6 month lead time to provide information on a new wholesale product and the Norway NRA

requires a 9 month lead time. Where other NRAs impose lead times, these are generally for

shorter periods (up to 90 days). In Croatia, the NRA has not set a lead time in relation to

information for new wholesale products. However, where the SMP operator is introducing a

new wholesale product it is required to amend the Reference Offer and the NRA sets the

lead time under which changes can be made to the Reference Offer.

In relation to BP18, the Austria NRA explained that the introduction of new or adapted

wholesale products mainly results from the non-discrimination obligation.

In relation to BP19, although the UK NRA did not impose any specific remedy in relation to

the notice period for the SMP operator to remove wholesale products, it noted that the SMP

operator already provided significant notice periods regarding the removal of regulated and

non-regulated products. The Croatia and Ireland NRAs explained that there were general

obligations that prevented the removal of wholesale products (without the NRAs approval).

The Austria NRA explained that it had not imposed lead times for removing wholesale

products since the SMP operator was not allowed to remove products it was obliged to

provide.

BoR (14) 171

24

In relation to BP20(a) and BP20(b), the UK NRA explained that this was mainly relevant to

VULA, which was largely addressed as part of remedies in the WLA market.

5.2.3. WLL market





Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP12 / n/a

BP13

BP14

BP15

In relation to BP12, the Greece NRA only imposes a remedy requiring technical replicability.

Economic replicability is not considered necessary since low capacity WLL markets are

shrinking, high capacity WLL markets are become increasingly competitive and no

complaints have emerged. The Sweden NRA indicated that BP12 is not applicable, since

leased lines are provided according to international technical standards (SDH, Ethernet).

In relation to BP13, the Greece NRA has not imposed specific lead times regarding the

introduction of new wholesale products since this is fulfilled through an update of the

Reference Offer under which lead times are determined on a case-by-case basis depending

on the requirements.

In relation to BP14, the Sweden NRA does not consider this necessary, since technical

characteristics are based on internationally approved standards and interfaces.

In relation to BP15, the Greece NRA did not consider whether specific regulation was

needed relating to the lead times for removing wholesale products because there has not

been any product withdrawal.

6. Competition objective 5: Transparency

6.1. Background

The BEREC Common Position refers to the competition issues of SMP operators not

providing sufficient clarity or transparency on the terms and conditions of access; SMP

operators delaying the provision of a Reference Offer (RO) to alternative operators, SMP

operators not taking into account the views of wholesale customers when developing the RO;

and SMP operators having preferential access to key information compared to alternative

operators.

BoR (14) 171

25






NRAs should require SMP operators to provide clarity of terms and

conditions by publishing a RO. The key element of which should be

specified or approved by the NRA

BP26 BP21 BP16

NRAs should require SMP operators to take account any reasonable

views of wholesale customers in their RO

BP26a BP21a BP16a

NRAs should require SMP operators to publish RO within a

reasonable time of access being granted

BP26b BP21b BP16b

NRAs should require SMP operators to update the RO as necessary in

a timely manner

BP26c BP21c BP16c

Where applicable, NRAs should impose an obligation on SMP

operators in relation to the minimum amount of information to be made

available in the RO

BP26d BP21d BP16d

After lifting an obligation on the RO, NRAs should ensure that SMP

operators provide provisions for the change in the contractual

conditions on the basis of that RO

BP26e BP21e BP16e

NRAs should require SMP operators to make certain information

available to all operators within a reasonable period of time i.e. KPIs,

planned changes to infrastructure

BP27 BP22 BP17

NRAs should consider setting up a civil infrastructure database

containing information of all ducts of the SMP operator

BP28 n/a n/a


6.2.1. WLA market




BoR (14) 171

26


Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP26

BP26a

BP26b

BP26c

BP26d

BP26e

BP27

BP28

In relation to BP26a, Austria, Estonia, Ireland, Malta and the UK NRAs do not specifically

require SMP operators to take account of the views of wholesale customers in their RO. The

Austria NRA considers that such a requirement would not be considered to be sufficiently

precise to guarantee legal certainty.8 The Ireland NRA explains that this is addressed

through the wholesale customer being able to make a request for access at any time. The

UK NRA explains that he SMP operator has a regulatory obligation to notify other operators

of changes to the reference offer (any such changes amount to a contract variation). The

non-discrimination obligations also provide additional protection for operators against

discriminatory changes to RO terms.

In relation to BP26e, with the exception of the Austria and Estonia NRAs, NRAs have not

imposed a condition since they have not removed any obligations in relation to a RO.

In relation to BP27, the Malta NRA considers that most information is of a commercially

sensitive nature and that certain technical information is only supplied to alternative

operators under non-disclosure agreements.

In relation to BP28, only the Croatia, Cyprus and Latvia NRAs have required the SMP

operator to set up a civil infrastructure database containing information relating to all ducts.

The UK NRA explained that it had not implemented BP28 since given the lack of evidence of

the likely future material use of physical infrastructure access, it did not consider it

proportionate to impose requirements on the SMP operator to publish more information.

In relation to BP28, the Austria NRA explained that the availability of ducts (and dark fibre) is

determined on demand. However, the level of sub-loop unbundling is low (and as a result the

demand for access to ducts and dark fibre for backhaul from street cabinets is also low) and

therefore a requirement to provide a civil infrastructure database is considered unnecessary.

8 According to a decision by national courts, official notifications have to be sufficiently precise for the affected undertakings to follow them without further guidance. An obligation to consider views of wholesale customers in the ROs was not eligible to fulfil that condition.

BoR (14) 171

27

6.2.2. WBA market





imposed.





Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP21 n/a

BP21a n/a

BP21b n/a

BP21c n/a

BP21d n/a

BP21e n/a

BP22 n/a

In relation to BP21a, the Austria NRA considers that such a requirement would not be

sufficiently precise to guarantee legal certainty. The Latvia NRA explained that alternative

operators have an opportunity to comment during a national consultation on draft rules on

terms and conditions to be included in the RO.

In relation to BP21e, with the exception of the Austria and Estonia NRAs, NRAs have not


6.2.3. WLL market





Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP16

BoR (14) 171

28

Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP16a n/a

BP16b n/a

BP16c n/a

BP16d

BP16e

BP17

In relation to BP16, the Sweden NRA does not impose a requirement to publish a RO, but

does require all information to be publically available. Therefore, BP16a, BP16b and BP16c

are not applicable to Sweden.

In relation to BP16a, the UK NRA requires the SMP operator to notify other operators of

changes to the RO. Any such change amounts to a contract variation with the other

operators and can only be implemented by agreement. In cases of disagreement, operators

can use the formal disputes process. The non-discrimination obligations also provide

additional protection for operators against discriminatory changes to the RO terms.

In relation to BP16e, with the exception of the Belgium and Spain NRAs, NRAs have not


In relation to BP17, the Ireland NRA does not set specific timescales regarding the provision

of information to operators.

7. Competition objective 6: Reasonable quality of access products -

technical issues

7.1. Background

The BEREC Common Position refers to the competition issues of SMP operators restricting

the usage of services in the relevant markets; not providing access products of reasonable

quality; arbitrarily limiting forms of access; or providing forms of access that are over

specified.




BoR (14) 171

29



NRAs should chose appropriate measures of control including: (a) An

obligation to publish RO; and (b) obligation to meet all reasonable

requests and which is periodically reviewed by NRA

BP29 BP23 n/a

NRAs should ensure that detailed information about the characteristics

of the access product are available to alternative operators (including

which technologies are allowed at each site)

BP30 BP24 n/a

NRAs should ensure that rules are in place to prevent mutual

interference of signals

BP31 n/a n/a

NRAs should require that SMP operators provide a RO which includes

relevant technical information

n/a n/a BP18

NRAs should encourage SMP operators to adhere to European or

global technical standards (where feasible) n/a n/a BP19

NRAs should require the interconnection of leased lines is possible at

a wide range of convenient locations

n/a n/a BP20

For wholesale leased line services that exclude trunk segments, NRAs

should ensure that end-to-end wholesale leased lines are available in

circumstances where interconnecting lines would be technically

infeasible or uneconomic

n/a n/a BP21


7.2.1. WLA market





Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP29

BP29: RO

reviewed?

BP30

BP31

In relation to BP29, the Ireland NRA does not have a formal process for reviewing the RO.

The NRAs that have a review process either undertake this as part of the market review

process (the UK); periodically as the RO is revised (Austria, Cyprus); at least on an annual

BoR (14) 171

30

basis (Croatia); on an annual basis or when then are major changes (Malta); or whenever

changes are made to the RO (Norway).

In relation to BP30, the Ireland NRA has imposed a general obligation requiring the SMP

operator to include a "Description of the technical specifications and the network

characteristics of the access being offered" in the RO for transparency.

7.2.2. WBA market





imposed.





Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP23 n/a

BP23: RO

Reviewed?

n/a

BP24 n/a

In relation to BP24, although the Austria, Croatia, Cyprus, Ireland, Latvia and Norway NRAs

require that information regarding the technical characteristics of the product is provided to

alternative operators the type (and extent) of information provided is not uniform across the

NRAs.

7.2.3. WLL market





Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP18

BoR (14) 171

31

BP19

BP20

BP21

In relation to BP18, the Sweden NRA does not require that the SMP operator provides a RO

which includes relevant technical information. However, it does require that all information is

made public.

In relation to BP19, the Belgium, Ireland and Sweden NRAs do not include a requirement

that operators adhere to European or global technical standards since this is considered

unnecessary (and/or reflects technical standards being negotiated between industry players).

In relation to BP21, the Ireland NRA does not impose a requirement that end-to-end

wholesale leased lines are available in circumstances where interconnecting lines would be

technically infeasible or uneconomic since these are generally not purchased in the market.

The Sweden NRA considers this requirement unnecessary and notes that no such problems

have arisen in the market.

8. Competition objective 7: Reasonable quality of access products

– operational aspects

8.1. Background

The BEREC Common Position refers to the competition issue of SMP operators having an

incentive to discriminate in favour of their own downstream operations in relation to the

quality of wholesale access products.






NRAs should require SMP operators to provide a reasonable defined

level of service

BP32 BP25 BP22

SLAs should cover specific areas BP32a BP25a BP22a

SLAs should be made available to wholesale operators BP32b BP25b BP22b

NRAs should take oversight for the process of setting SLAs BP32c BP25c BP22c

SLAs should take into account differences in customer requirements BP32d BP25d BP22d

NRAs should impose a requirement on SMP operators to provide

SLGs

BP33 BP26 BP23

SLGs should cover all necessary specific areas BP33a BP26a BP23a

SLG payments should be made without undue delay (with a pre-

established process for payment and billing)

BP33b BP26b BP23b

NRAs should take oversight for the process of setting SLGs BP33c BP26c BP23c

BoR (14) 171

32


SLGs should be made available to all alternative operators

(irrespective of the size of purchases)

BP33d BP26d BP23d

NRAs should impose a generic requirement on SMP operators to

provide KPIs as a means of monitoring non-discrimination and

compliance obligations

BP34 BP27 BP24

KPIs should cover all necessary specific areas BP34a BP27a BP24a

The results of monitoring KPIs should be made available to all

operators in the market

BP34b BP27b BP24b

NRAs should take oversight for the process of setting KPIs BP34c BP27c BP24c


8.2.1. WLA market





Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

Requirement for SLAs

BP32 /

BP32a

BP32b

BP32c

BP32d

Requirement for SLGs

BP33

BP33a

BP33b

BP33c

BP33d

Requirement for KPIs

BP34 [] []

BP34a

BP34b

BoR (14) 171

33

Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP34c /

In relation to BP32, the UK NRA does not define “a reasonable level of service”, rather the

requirement is on the SMP operator to negotiate and agree this with alternative operators.

However, the UK NRA has imposed minimum QoS standards on WLR and LLU products

provisioning and repair.

In relation to BP32a, the Latvia NRA does not define the specific areas that SLAs should

cover. The SMP operator is responsible for defining the set of SLAs.

In relation to BP32c, although the Ireland NRA does not oversee the process of setting SLAs,

it explains that the SMP operator is required to complete a legally binding SLA (and the NRA

can intervene if necessary).

In relation to BP33 and BP33 (a)-(d), the Latvia NRA did not consider it appropriate to

impose SLGs whilst operators were continuing to invest in NGA. The Malta NRA has not

imposed a requirement relating to SLGs since there is a lack of demand for LLU/SLU.

In relation to BP34, the Estonia NRA does not impose a requirement for KPIs since these are

not considered cost effective. The Malta NRA has not imposed a requirement relating to KPIs

since there is a lack of demand for LLU/SLU.

In relation to BP34c, the Latvia NRA responded that it did not oversee the process of setting

KPIs since the particular requirement had not come in to force at the time of responding to

the questionnaire.

8.2.2. WBA market





imposed.





Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BoR (14) 171

34

Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK


BP25 n/a

BP25a n/a

BP25b n/a

BP25c n/a

BP25d n/a


BP26 n/a

BP26a n/a

BP26b n/a

BP26c n/a

BP26d n/a


BP27 n/a

BP27a n/a

BP27b n/a

BP27c n/a

In relation to BP25, BP26 and BP27, the Latvia NRA does not impose any requirements.

However, the SMP operator may define levels of service on its own initiative. At the stage

when both the incumbent and alternative operators continue to invest into NGA, it does not

consider that imposing SLGs or KPIs is appropriate.

In relation to BP25c, the UK NRA considers that the publication of SLAs in the RO provides

sufficient oversight without a specific requirement.

In relation to BP26c, although the UK NRA imposes no requirement to include SLGs in the

RO this is not considered to be an issue.

In relation to BP27 and BP27 (a)-(c), the UK NRA has not imposed a requirement on the

SMP operator to provide KPIs since the SMP operator provides these voluntarily.

8.2.3. WLL market





BoR (14) 171

35

Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK


BP22

BP22a

BP22b

BP22c

BP22d


BP23

BP23a

BP23b

BP23c

BP23d


BP24 []

BP24a

BP24b

BP24c

In Sweden, the SMP-operator has provided relevant SLAs and SLGs for at least 15 years. In

relation to BPs 22 – 24, the Sweden NRA considers a non-discrimination remedy sufficient.

In relation to BP 22d, there is no demand for differentiated SLAs in Spain as the SLA

included in the reference offer, developed under the supervision and final approval by the

NRA, have been set at the highest standard. Nonetheless, the Leased Lines Reference Offer

clarifies that the SMP operator is obliged to address reasonable requests for stricter or

specific requirements on SLAs made by any alternative operator. In relation to BP23b, the

Belgium NRA does not impose a requirement that SLG payments should be made without

undue delay (with a pre-established process for payment and billing). However, penalties are

a right for customers.

In relation to BP24, although the UK NRA has imposed an obligation for the SMP operator to

publish information about quality of service it has not exercised this since the SMP operator

has shared quality of service information with operators voluntarily. In relation to BP24(c) the

UK NRA does not have oversight of the process for setting KPIs since the market

circumstances did not cause particular concerns for discriminatory behaviour. In relation to

BP24, the Sweden NRA explained that in conformity with the best practice it had not

imposed an obligation since this was considered unnecessary and would not be cost

effective.

BoR (14) 171

36

9. Competition objective 8: Assurance of efficient and convenient

wholesale switching

9.1. Background

The BEREC Common Position identifies the competition issue of SMP operators having an

incentive to discriminate in favour of their own downstream operations which may result in

wholesale customers being unable to switch wholesale products and/or wholesale providers

without the minimum delay or disruption.

The competition issues identified by BEREC are addressed by the Best Practice 35 in the

WLA Common Position; Best Practice 28 in the WBA Common Position; and Best Practice

25 in the WLL Common Position. These can be summarised as follows:



NRAs should impose obligations to ensure that wholesale switching

processes are speedy and efficient

BP35 BP28 BP25

NRAs should require that the maximum allowed downtime during

wholesale switching is the lowest possible

BP35a BP28a BP25a

NRAs should require that the price of the switch does not act as a

barrier to switching

BP35b BP28b BP25b

Where necessary, NRAs should put in place measures to facilitate

bulk wholesale switching process and ensure these are non-

discriminatory

BP35c BP28c BP25c

NRAs should require that the transaction time required to process

wholesale switching is as low as possible

BP35d BP28d BP25d

NRAs should require SMP players to introduce SLAs/SLGs and KPIs

to ensure the efficiency of the switching process

BP35e BP28e BP25e


9.2.1. WLA market




BoR (14) 171

37


Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP35

BP35a

BP35b

BP35c [] [] [] [] []

BP35d

BP35e [] [] [] [] [] [] []

The Estonia NRA does not impose any obligations to ensure wholesale switching since these

are considered unnecessary and not cost effective.

Where NRAs did not impose specific BPs (a) to (e) this was typically because these were

considered unnecessary.

In relation to BP35(d) the Latvia NRA stated that the requirement is in line with the current

NGA recommendation. The Austria NRA explained that there is no general obligation, but a

process is defined for switching between LLU and VULA.

9.2.2. WBA market





imposed.




BoR (14) 171

38


Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP28 n/a n/a

BP28a n/a n/a

BP28b n/a n/a

BP28c [] [] n/a n/a []

BP28d n/a n/a

BP28e [] n/a [] n/a []

The Estonia NRA responded that all BPs were not applicable but did not give any further

detail explaining why this is the case. The UK NRA explained that it does not impose any

remedies relating to wholesale switching in the WBA market because switching between

wholesale suppliers has not been a feature of the WBA market. To the extent it does occur, it

relies on switching and migration processes in the upstream LLU market.

In relation to BP28a, the Ireland NRA does not impose a requirement relating to the

maximum allowed downtime during wholesale switching since the SLA is negotiated by the

industry.

In relation to BP28(d) the Latvia NRA stated that the requirement is in line with the current

NGA recommendation. The Austria NRA explained that maximum process times are defined

for different switching processes.

For all other responses where NRAs did not impose specific BPs (a) to (e) this was typically

because these were considered unnecessary.

9.2.3. WLL market





Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP25

BP25a

BP25b

BP25c [] [] []

BoR (14) 171

39

Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP25d

BP25e [] [] []

In relation to BP25, only the Greece NRA and the Spain NRA imposed obligations to ensure

a speedy and efficient wholesale switching process. Where either the Greece or Spain NRA

did not impose the specific BPs (a) to (e) this was because they were not considered

necessary (in the case of the Greece NRA it noted that businesses generally wish to avoid

disruption when changing leased lines and therefore want the new leased line provided and

tested before the old one is decommissioned).

In relation to BP25, the Belgium, Ireland and Sweden NRAs do not impose obligations to

ensure a speedy and efficient wholesale process. The Belgium NRA explained that the end

user needs to have the services of the ending contract operational in parallel with those of

the starting contract before decommissioning the old one. It thus considers that switching is

not relevant. The Ireland NRA explained that there is no obligation for switching of leased

lines and no requests have been made by industry for such a process. In Sweden the NRA

considers these obligations are not necessary for leased lines.

The UK NRA also does not impose obligations to ensure a speedy and efficient wholesale

process. It explained that the demand for such switching/migration products is uncertain.

Businesses generally wish to avoid disruption when changing leased lines and therefore

want the new leased line provided and tested before the old one is decommissioned. It also

noted that the SMP operator is subject to an obligation to provide network access on

reasonable request and alternative operators can request migration products without further

intervention by the NRA. Notwithstanding this, the NRA did impose a remedy to ensure that

the pricing of switching (BP25(b)) did not act as a barrier to switching through a charge

control.

10. Competition objective 9: Assurance of efficient migration

processes from legacy to NGN/NGA network

10.1. Background

The BEREC Common Position identified the competition issue of SMP operators not

providing migration procedures from legacy to NGN/NGA networks that enable competitors

to provide retail services based on the new network to compete with the SMP operator.




BoR (14) 171

40



NRAs should require that switching procedures equally apply between

legacy and NGN/NGA wholesale products

BP36 BP29 BP26

Where an SMP intends to decommission its legacy network the NRA

should impose obligations in relation to the framework for migration;

notice period and an obligation for incumbent to provide all relevant

information

BP37 BP30 BP27

NRAs should require that existing obligations remain in place until

migration path is agreed and finished

BP38 BP31 BP28

When imposing a notice period for phasing out a legacy network the

NRA should consider the notice period is likely to be longer for

locations; the availability of a full-fledged alternative; and reasonable

migration period for a switch of wholesale products

BP39 BP32 BP29

A notice period of 5 years for decommissioning MDFs may be

appropriate

BP40 n/a n/a

The replacement network is active in adequate advance of the

decommissioning of MDFs

n/a BP33 n/a


10.2.1. WLA market





Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP36

BP37

BP38

BP39

BP40 /

The UK NRA has not imposed obligations relating to BP36 – BP40 since there is no planned

decommissioning of the legacy network in the UK at present.

In relation to BP36, the Cyprus and Malta NRAs do not impose switching procedures that

apply equally between legacy and NGN/NGA wholesale products. In Malta this is because

BoR (14) 171

41

there is a lack of demand for LLU and SLU (with VULA under consideration). In Cyprus, the

SMP operators NGA topology is currently not known as it has yet to deploy an NGA network.

In relation to BP38, although the Ireland NRA has not imposed a requirement for existing

obligations to remain in place until a certain migration path is agreed it stated that the SMP

operator offers a wide range of migration paths to satisfy other operator’s needs.

In relation to BP39, although the Malta NRA has considered the notice period relevant to

phasing out a legacy network it reserves the right to set out conditions for migration if

required. Similarly, although the Ireland NRA has not considered the issue, the withdrawal of

access already granted requires the prior approval of the NRA.

In relation to BP40 the Croatia NRA has required a notice period for decommissioning MDFs

of up to 5 years in some specified geographic areas. No other NRA has imposed a notice

period of as long as 5 years in relation to decommissioning MDF. However, the Ireland NRA

has proposed 5 years as part of a set of proposals. For those NRAs that have implemented a

remedy, the notice period is a maximum of 3 years in Norway and 1 year in Latvia.

10.2.2. WBA market





imposed.





Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP29 n/a n/a

BP30 n/a n/a

BP31 n/a n/a

BP32 n/a n/a

BP33 n/a n/a

The Austria NRA does not impose any obligations relating to BP29-BP33 since there are no

new wholesale products or changes (other than bandwidth increases) to the existing

products which result from the migration to NGN/NGA.

In Cyprus the SMP operator has yet to deploy an NGA network. However, in relation to BP30

the Cyprus NRA has imposed obligations in relation to a framework for migration.

BoR (14) 171

42

In relation to BP30, the UK NRA has not imposed any obligations around a framework for

migration or notice periods for migration. However, under the Reference Offer, the SMP

operator is required to provide details of the phase-out of legacy networks and in practice,

the SMP operator has already been providing significant notice of the phase-out of IPstream

services.

In relation to BP33, the UK NRA considered that the notice for decommissioning MDFs

would be considered in the next market review for WLA. In Ireland, there is a general

obligation not to withdraw facilities already granted without approval from the NRA.

10.2.3. WLL market





Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP26

BP27

BP28

BP29

In relation to BP26-BP29, the Sweden NRA did not consider it necessary to impose any

remedies relating to the migration processes from legacy to NGA/NGN networks in the WLL

market. The Ireland NRA does not impose any obligations for switching from legacy to NGA

network in the WLL market but explains that no requests have been lodged by the industry

for such a process.

In relation to BP26, only the Spain NRA imposed a requirement that switching procedures

apply equally between legacy and NGN/NGA wholesale products. All other NRAs considered

it unnecessary. The UK NRA explained that demand for such switching/migration products is

uncertain with businesses generally wishing to avoid disruption when changing leased lines

and therefore want the new leased line provided and tested before the old one is

decommissioned. Furthermore, in the UK, the SMP operator is subject to an obligation to

provide network access on reasonable request, and operators can request migration

products without further intervention by the NRA.

In relation to BP27, the Ireland NRA imposed a general requirement that the SMP operator

must not withdraw access to facilities already offered without the permission of the NRA.

In relation to BP28, the UK NRA has not imposed an obligation that requires existing

obligations to remain in place until a migration path is agreed and finished. However, it

explained that it would be likely to maintain the SMP obligations in the legacy markets (also

BoR (14) 171

43

noting that the SMP operator has not yet decommissioned its legacy network to any

significant extent).

In relation to BP29, although the Greece and Ireland NRAs did not impose a specific

requirement, a general obligation is imposed requiring the notification of all changes to SMP

products (i.e. that is not limited to the phasing out of legacy products). The Ireland NRA also

approves the withdrawal of wholesale products. The UK NRA has not imposed a specific

notice period for phasing out of legacy networks as the obligation for the SMP operator to

notify technical information is considered sufficient (there is accompanying guidance about

notice periods for major changes).

11. Competition objective 10: Fair and coherent access pricing

11.1. Background

The BEREC Common Position identifies the risk of alternative operators in the market facing

uncertainty as to the price of wholesale services in the relevant market with SMP operators

creating arbitrage opportunities between different wholesale inputs that may dis-incentivise

efficient investment by alternative operators. The Common Position also makes reference to

SMP operators engaging in margin squeeze and engaging in predatory pricing.






NRAs should ensure that with reasonable certainty the price of access

will permit an efficient entrant to compete with the SMP operator

BP41 BP34 BP30

When determining pricing regulation, NRAs need to consider that it

incentivises both efficient investment and sustainable competition

BP42 BP35 BP31

Where appropriate and proportionate, NRAs should require SMP

operators to provide regulated products based on an explicit pricing

obligation

BP43 BP36 BP32

NRAs should determine the costing methodology taking account of the

prioritisation of regulatory objectives; and prevailing market conditions

BP44 BP37 BP33

When setting a cost oriented price control obligation, NRAs should

consider the relevant costing methodology to be used for setting

charges. This must allow the recovery of efficiently incurred costs and

follow cost causality

BP45 BP38 BP34

Prices for services that are technically similar should be priced

similarly

n/a n/a BP34a

Where prices are cost oriented, NRAs should impose obligations in

relation to cost accounting and/or accounting separation

n/a n/a BP34b

The access price should send the correct economic signals i.e. should

be competitively neutral;

BP46 BP39 n/a

BoR (14) 171

44


NRAs should impose regulatory remedies that avoid excessive

profitability

BP47 n/a n/a

The effective price granted by the SMP operator should not be

discriminatory

BP48 BP40 BP35

An ex ante pricing remedy may be unnecessary if there is no risk of

excessive pricing due to strong indirect constraints or remedies

imposed in markets 4 and 5 regarding EOI and a margin squeeze test

n/a BP41 n/a

NRAs should put in place obligations preventing SMP operators

engaging in margin squeeze

BP49 BP42 BP36

NRAs may need to take steps to ensure that the margin between

upstream and downstream services is sufficient to facilitate investment

(by alternative operators)

BP50 BP43 n/a

NGA WLA only: NRAs should ensure that the pricing of inputs to NGA

access products is in line as the same products when used for legacy

access products

BP51 n/a n/a

NGA WLA/WBA only: NRAs should ensure that the pricing of NGA

access products is consistent with the pricing of legacy access

products to set efficient incentives to invest

BP52 BP44 n/a

NGA WLA only: Regarding duct access, the NRA may consider

different cost allocation rules

BP53 n/a n/a

NGA WLA/WBA only: The NRA should consider whether to separate

the risk borne by the SMP operator in operating its NGA network from

other services

BP54 BP45 n/a

NGA WLA/WBA only: Price differences should reflect differences in

risk faced by the investor

BP55 BP46 n/a

NGA WLA/WBA only: When assessing long-term contracts NRAs

should strike a balance between lowering the risk for the SMP operator

and transferring the risk to other operators

BP56 BP47 n/a

NRAs should ensure that discounts are not discriminatory BP57 BP48 BP37

NGA WLA/WBA only: The main objective of volume discounts is to

increase penetration and lower unit costs

BP58 BP49 n/a

NGA WLA/WBA only: When considering volume discounts, NRAs

should consider whether the threshold for minimum efficient scale may

curtail competition and foreclose the market

BP59 BP50 n/a


11.2.1. WLA market

Since the revised CP has been in placed the WLA market has been reviewed by 10 NRAs



BoR (14) 171

45


Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP41

BP42 n/a

BP43

BP44 n/a

BP45

BP46 n/a

BP47

BP48

BP49

BP50

BPs applicable to pricing of NGA WLA only

BP51

BP52

BP53 n/a

BP54 n/a n/a

BP55 n/a

BP56 n/a

BP57 n/a



The Latvia NRA explained that ”the current methodology used for legacy networks is FDC

CCA, and the NRA is in the process of elaboration of costing principles”. Hence, many of the

BPs have not, to date, been imposed.

In relation to BP43, the Norway NRA regulates the price of copper-based WLA products but

does not regulate the price of fibre-based WLA products. Similarly, the UK NRA price

regulates copper-based WLA products but does not price regulate VULA since it has

imposed an EOI requirement in the WLA market (which is consistent with the Commission’s

recommendation on regulated access to NGA networks).9

9 COMMISSION RECOMMENDATION of 20 September 2010 on regulated access to Next Generation Access Networks (NGA) http://eur-lex.europa.eu/LexUriServ/%20LexUriServ.do?uri=OJ:L:2010:251:0035:0048:EN:PDF

http://eur-lex.europa.eu/LexUriServ/%20LexUriServ.do?uri=OJ:L:2010:251:0035:0048:EN:PDF

BoR (14) 171

46

In relation to BP44, although the Malta NRA responded that it had not taken into account the

factors of (i) the prioritisation of regulatory objectives; and (ii) prevailing market conditions

when determining its costing methodology, it did say that for fibre it had used an economic

replicability test that takes account of market conditions.

In relation to BP49, only the Estonia and Malta NRAs have not imposed a remedy preventing

SMP operators engaging in a margin squeeze. Estonia uses a TD FDC HC cost model for

the regulation of wholesale prices and does not consider that a margin squeeze remedy is

necessary. The Malta NRA explained that the price control of fibre is based on an economic

replicability test. The UK NRA has imposed a margin squeeze remedy on NGA only and

relies on competition law as a remedy to address margin squeeze in relation to current

generation access.

In relation to BP50, only the Austria, Croatia, Cyprus, Netherlands and the Norway NRAs

explicitly ensured that the margin between the upstream and downstream services is

sufficient to facilitate efficient investment in line with the ladder of investment principle. The

UK NRA explained that since LLU has expanded to around 95% of UK premises it

considered that CPs have already climbed the ladder of investment and therefore there is no

specific need to ensure a particular margin that facilitates efficient investment in this manner.

The Malta NRA is still developing its policy.

BP51-59 concerns pricing issues applicable to NGA-based wholesale local access only. For

the Latvia and Malta NRAs these issues are still being considered. The UK NRA does not set

the price of NGA access but notes that NGA must be provided on an EOI basis. Therefore,

many of the BPs are not applicable to these NRAs.

In relation to BP53, regarding the cost allocation rules for the pricing of ducts, the Austria

NRA uses number of subscribers, the Croatia NRA and the UK NRA use space, the Cyprus

NRA uses number of cables and the Estonia NRA uses duct metres. The Norway NRA uses

historical costs.

In relation to BP54, the Austria NRA explained that it was left to the SMP operator to identify

an NGA specific risk. However, the SMP operator did not identify such a risk. In relation to

BP55-BP57, the Austria NRA explained that no pricing schemes had been proposed.

Our questionnaire did not pose questions relating to the specifics of BP58 and BP59 (which

regard the criteria that should be used when assessing the introduction of volume discounts).

Therefore, these are blocked out in Table 40. However, none of the SMP operators within the

WLA participants offer volume discounts and therefore these are considered not applicable.

11.2.2. WBA market





imposed.

BoR (14) 171

47





Austr

ia

Cro

atia

Cypru

s

Esto

nia

Irela

nd

Latv

ia

Malta

Neth

erl

an

ds

Norw

ay

UK

BP34 n/a

BP35 n/a

BP36 n/a

BP37 n/a

BP38 n/a

BP39 n/a

BP40 n/a

BP41

BP42 n/a

BP43 n/a

BPs applicable to pricing of bitstream based on NGA only

BP44 n/a

BP45 n/a n/a n/a n/a n/a n/a n/a


BP47 n/a n/a

BP48 n/a

BP49

BP50

The Latvia NRA explained that ”the current methodology used for legacy networks is FDC

CCA, and the NRA is in the process of elaboration of costing principles”. Hence, many of the

BPs have not, to date, been imposed.

In relation to BP36, the Norway NRA regulates the price of copper-based WLA products but

does not regulate the price of fibre-based WLA products.

In relation to BP38, the Netherlands NRA has set a cost oriented pricing obligation based on

the recovery of actual costs as opposed to efficient cost. The Ireland NRA is still considering

this issue (and therefore the issue relating to BP39 also).

Our questionnaire did not pose a question relating to BP41. Therefore, this is blocked out in

Table 41.

BoR (14) 171

48

In relation to BP42, the Estonia NRA uses a TD FDC HC cost model for the regulation of

wholesale prices. However, it has no legal basis for imposing regulation on retail prices and

therefore has not imposed an obligation that prevents SMP operators engaging in a margin

squeeze (this would be addressed through ex post competition law).

In relation to BP43, with the exception of Latvia, all NRAs have taken steps to ensure that the

margin between upstream and downstream services is sufficient to facilitate investment (by

alternative operators).

In relation to BP44-50 currently NGA bitsream prices in Croatia are based on a retail minus

methodology. However, the NRA has recently concluded its bottom-up bitstream FTTH

pricing model and its decision on implementing bottom-up bitstream FTTH pricing is pending.

The decision is expected to come into force on 1st January 2015.

In relation to BP45 (and thereby BP46), Austria, Cyprus, Ireland, the Netherlands, Norway

and the UK NRAs did not identify specific risks relating to the NGA.

In relation to BP47, the Austria NRA explained that no pricing schemes had been proposed.

Our questionnaire did not pose questions relating to the specifics of BP49 and BP50 (which

regard the criteria that should be used when assessing the introduction of volume discounts).

Therefore these are blocked out in Table 41. However, it is noted that the Austria and

Norway NRAs accept volume discounts based on the volume of individual operators; the

Ireland NRA considers the use of volume discounts on a case by case basis; and the UK

NRA does not specifically refer to volume discounts but requires that access is provided on

an EOI basis.

11.2.3. WLL market





Belg

ium

Gre

ece

Irela

nd

Spa

in

Sw

ed

en

UK

BP30

BP31

BP32

BP33

BP34

BP35

BP36

BP37

BoR (14) 171

49

In relation to BP30 and BP31, five NRAs have ensured that the price of access permits an

efficient entrant to compete, incentivises efficient investment and incentivises sustainable

competition. The Sweden NRA has not imposed these requirements and has instead chosen

to impose a non-discriminatory pricing requirement only. With the exception of BP35 and

BP37 (prices and discounts not being discriminatory), the Sweden NRA does not impose any

of the remaining BPs.

Due to an error in the questionnaire, the wrong question was asked regarding BP35.

However, based on the answers to BP37, it is reasonable to conclude that all NRAs have

ensured that prices are not discriminatory and are offered to all operators.

BoR (14) 171

50

Annex 1 – List of respondents

NRAs included in Phase 1 report

Country NRA Respondent WLA participant

WBA participant

WLL participant

Austria RTR Yes

Belgium BIPT Yes

Bulgaria CRC No

Croatia HAKOM Yes

Cyprus OCECPR Yes

Czech Republic CTU Yes

Denmark DBA Yes

Estonia ECA Yes

Finland FICORA Yes

France ARCEP Yes

Germany BNETZA Yes

Greece EETT Yes

Hungary NMHH Yes

Ireland COMREG Yes

Italy AGCOM Yes

Latvia SPRK Yes

Lithuania RRT Yes

Luxembourg ILR No

Malta MCA Yes

Montenegro EKIP Yes

Netherlands ACM Yes

Norway NPT Yes

Poland UKE Yes

Portugal ANACOM Yes

Macedonia AREK Yes

Romania ANCOM Yes

Slovak Republic RU Yes

Slovenia AKOS Yes

Spain CNMC Yes

Sweden PTS Yes

Switzerland COMCOM Yes

Turkey BTK Yes

UK OFCOM Yes

Documents

Monitoring implementation of the BEREC Common …berec.europa.eu/eng/document_register/subject_matter/berec/... · and WLL markets since the ... Transparency NRAs have generally required